False friends and true cognates: On fundamental freedoms, fundamental rights and union citizenship

Abstract

Both the case law on fundamental freedoms, and the selective manner in which these freedoms are incorporated in the Charter of Fundamental Rights of the EU are consistent with an account of fundamental rights that places a non-instrumental focus on the protection of the interests of the right-holder (the Union citizen). According to the account advanced here, those free movement rights that are non-instrumental in nature are treated as fundamental rights, whereas those free movement rights that remain predominantly instrumental are not. Yet, developments in the case law on Union citizenship that have occurred during the current decade present a challenge to this account. On the one hand, they appear to draw on the conceptual toolkit of fundamental rights; on the other, they contradict key features of a fundamental rights conception of Union citizenship.